A minor's property and earnings

Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child’s property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child’s minority, if no trustee or guardian of his property has been appointed, the father or mother will usually be appointed guardian, and in that capacity they are bound to administer the property for the benefit of the child, nor may they use it for their own profit.

On the other hand, English law gives no right to children to share in their father’s property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. As to entailed property, a tenant in tail in possession may now under the Law of Property Act, 1925, in certain circumstances bar an entail and dispose of it as a fee simple, not only by deed but by will.

When an intestate, whether husband or wife, leaves a surviving spouse and issue, the survivor of husband or wife takes (a) personal chattels absolutely; (b) £1,000 net free of Death Duties and costs, with 5 per cent. interest thereon from death till payment or appropriation; (c) a life interest in half of the rest of the intestate’s estate. Subject thereto the property is held on the statutory trusts for the issue.

If the intestate die leaving no husband or wife surviving, but only issue, then the issue take the whole of the estate on the statutory trusts. These statutory trusts provide for equal division of the estate per stirpes.

A child who has the means is under a moral obligation of supporting his parent when he is incapable of supporting himself, and this obligation is enforced by English law.

Moreover, if a minor living with his parent is earning wages the parent is not bound to support him free of cost, and until he is sixteen it would seem that the parent is justified in taking his earnings. Even after that age it may well be that an elder son or daughter who is in receipt of wages is bound to help to support younger brothers and sisters if the family is numerous. Apart from these obligations a minor acquires a full right to what he earns, and may enter into a contract with his parents for the payment of the cost of his board and lodging, reserving what is over of his wages for himself. If a minor works in his father’s house no contract for wages will be presumed; he is supposed to forgo them, or his keep is supposed to be an equivalent, unless an express contract for wages is entered into between them.

Minority ceases on the completion of the twenty-first year of the minor’s age, or by emancipation. A minor is emancipated from his parents’ control by marriage, by entering into religion, or when an adult child leaves the paternal household and enters the army or ordinary service as a domestic servant or labourer.¹

¹ Eversley, Law of the Domestic Relations, p. 599.

31. 1. A minor is emancipated when he reaches the 21st year, or when he enters marriage, or when he leaves the paternal house and by reason of occupation ceases to be subject to the father, as if the minor becomes a soldier or the servant of another.¹²¹

2. If the son is supported in the paternal house and by his own labor acquires something, the father can take this up to the 16th year; for thus the support is compensated in some measure. But after this time the parents can demand from the son only the price of support. But when children labor without remuneration or hand over the whole wage to the parents, they are considered to renounce their rights.

¹²¹ Cf. Slater, Princ. Theol. mor., De iust. c. 3, § 2, and W. Eversley, The Law of the Domestic Relations p. 598.

Positive law, for the good both common and private, has restricted the capacity of possessing that belongs to every intellectual nature. The capacity of ownership has been restricted in children under paternal power and minors, in wives, in moral persons (for example municipalities, convents, etc.), in those civilly dead and interdicted, in religious and beneficed clerics.

There will be discussion of those civilly dead and interdicted in n. 1042, of religious and clerics in n. 2156, 2245.

The goods and rights of children under paternal power (and of other minors) vary greatly among various peoples. We shall here relate the principal laws that exist concerning this matter (recall the things said concerning distinction of persons, n. 698). Since these various laws establish rights for the common good, they oblige in conscience (cf. 838, 1).

858. From Roman Law, in the goods of children under paternal power there are distinguished: 1. camp goods, which the son or ward acquires for himself from military service, or on the occasion of military service; to which quasi-camp goods come nearest, which he acquires from civil service or from public offices, for example of judge, advocate, lector, physician, cleric, etc.; - 2. adventitious goods, which come to a son under paternal power either from his mother, or from the maternal line, or in consideration of his mother, or by another way, for example inheritance, donation, fortune (as if he finds a treasure), business with non-paternal goods, or in his own name, etc.; - 3. profectitious goods, which a son receives from his father, or in consideration of his father, or which he gains from the things of his father by doing business in his name (Doveri, Instit. di Diritto rom., l. 1, § 134).

859. From the new Codes, the goods of children are generally divided into a double class. The former comprehends goods obtained by children by labor and separate industry, or those that are given to them with the express condition that their usufruct not come to the parents. The latter embraces all other goods that come to children, for example by donation or by another similar title.

860. Moreover, as regards both these kinds of goods, one must diligently distinguish between direct ownership, administration, and usufruct. - 1. Direct ownership of all goods that come to children by just title pertains to them, although they are minors and not emancipated, since they are capable of such ownership. Just title is donation, inheritance, separate industry, etc. - 2. Administration of all goods is in the possession of the father or guardian, who must supply the incapacity or inexperience of the children, until they themselves are of age or emancipated. Those of age obtain full administration of their goods, but emancipated persons restricted administration. - 3. Usufruct belongs either to the children or to the parents, according as positive law establishes.

861. In France. Usufruct, generally, pertains to the father (or, he being dead, to the mother remaining in widowhood), until the emancipation of the children or the completed eighteenth year. From the proceeds, however, the offspring must be fed and educated according to their condition. - We said generally, because there are excepted: 1. goods that children obtain for themselves by their own labor and separate industry; - 2. goods that are given to them under the express condition that their usufruct not come to the parents. Civil Code, 384-387.

In Italy. Usufruct is conceded to the father or mother having paternal authority, until the children are of age or emancipated. It is lost by either parent who, after the death of the spouse, contracts new nuptials. Fructuary parents are held to procure for the offspring such education as is consonant with his fortune and condition. - There are excepted: 1. goods that children acquire for themselves by their own labor and separate industry; - 2. goods that are given to them with the condition annexed that the parents not perceive usufruct; - 3. goods that come to them, according to the disposition of law, while the father dissents. Code, 228-239.

In Spain. Usufruct is generally conceded to the father (or mother having paternal power). There are excepted a) goods that are given to children so that they may serve for their education; - b) goods that children acquire by separate industry, if with the father's consent they live at their own expense outside the paternal home; - c) goods of children who have been recognized or adopted; indeed the father cannot even administer the goods of these unless security has been given (Gury-Ferreres, n. 545). Code, 160-162, 166.

In Austria. Usufruct belongs to children even minors and not emancipated, the expenses of education nevertheless being deducted. And although a son not yet emancipated does not have the administration of his goods, nevertheless he can freely (and therefore also validly, if nothing else opposes from another source) dispose: 1. of goods acquired by his own industry, provided he himself does not receive support from his parents; 2. of goods that are attributed to his use, provided he is pubescent (Delama, n. 37). Code, 149 seqq.

In Germany. The new law distinguishes the goods of children under paternal power into free and not free. - Those are called free: 1. which children have obtained for themselves by their own labor and separate industry; - 2. which they have received by gift, the parents being excluded from usufruct; - 3. which, by living sparingly, they have set aside from goods that had been conceded to them in full power for living, while they lived outside the paternal home. - All the rest are called not free. The father has the usufruct of these with administration, until the time at which the son passes out of paternal power. The usufruct of free goods belongs to the son, but administration to the father or to the third person to whom the author of the goods committed it (Pelt, o.c., p. 34 seqq.). Code, 1617 seqq.; 1649 seqq.

In England. Usufruct pertains to the children. But whether the expenses of education must be refunded from the goods of the father, or from the goods of the children, the tribunals are accustomed to decide according to the circumstances of the case (Crolly, n. 456-465).

862. Special Questions. It will not be beside the matter here to institute discussion both concerning the right to wages that children acquire when laboring for their father, and concerning the right in small and movable goods that they receive from parents or kinsmen.

I. Concerning Labor in the Paternal Home. 1. A minor son does not have a strict right to wages for ordinary labor that he performs for the advantage of the family; but he possesses that right for extraordinary labor. Reason for the first: parents can by right require that he labor for conserving and increasing the domestic estate; this labor of minors is owed from piety. - Civil law also agrees, for example German Law, § 1617. Reason for the second: extraordinary labor (i.e. that which exceeds the expenses of living, or by reason of age or condition is not owed) is equated with labor undertaken by strangers, and therefore it merits wages. Cf. St. Alphonsus, III, n. 488, 544, 810; Lugo, o.c., disp. 5, n. 42; Delama, n. 34, q. 1.

2. A son of age, for labor even ordinary, of itself merits wages: for they are owed to a stranger; hence, by parity, to a son of age. But it must be considered that a son of age is sustained by his father, that by his labor he also amplifies the father's estate. From this it follows that the wage owed to the son often must be diminished, namely with expenses for food, clothing, and habitation deducted, and with attention given to the hope of inheritance.

Note. Some authors attribute to the son, even a minor, a strict right to wages; others deny that a son of age possesses a right to salary for ordinary labor. Cf. the diverse opinions apud Tanquerey, II, n. 149; Noldin, II, n. 354; Lehmkuhl, in Theol. mor. and in Cas. Consc.; Delama, l.c. ad 1. Besides, some civil Laws (for example German Law, n. 1617) in general deny children a right to wages. - From this it follows: parents do not act unjustly if they do not increase the inheritance for laborious children; but children who, before the separation of goods, have set something aside for their labor, after the fact are not to be compelled to restitution, especially if other children contributed nothing toward increasing the domestic estate. But since the right to wages for ordinary labor, on the part of children of age, is not altogether certain, before the fact there is not securely present a right of compensation (n. 917).

II. Concerning Labor Outside the Paternal Home. 1. A minor son laboring outside the home, and hired out by the father, labors in the name of the father. Therefore the profit that he acquires seems to be a profectitious good, pertaining to the father. Reason: the same debt of piety, which we indicated above, flourishes here. Nevertheless, he does not certainly sin against justice if he retains something. Cf. German Law, 1651.

2. A son hiring out his own labors makes the profit his own. He would be held from justice to pay something to his parents if he were living at the expense of the family; from piety if the necessity of the parents were present.

3. A son doing business in the name of his father makes his own only that which he has gained from special industry, even if by theft he had procured his father's money for himself. Indeed, in this last case, if namely he intends to do business in his own name, the whole profit is to be ascribed to the son (Lehmkuhl, I, n. 565).

III. Concerning the Right in Goods Received. 1. In goods that are not immediately consumable by use, as garments, books, etc., a child under paternal power possesses only useful ownership; for, from common sense, the child, as regards those things, does not receive property, but only use. Therefore he cannot without the consent of parents or kinsmen, at least reasonably presumed, sell, give, or alienate them.

2. In goods that are consumable by first use, as foods or money, if they have been given without any condition, a child under paternal power has perfect ownership: therefore he can dispose of them at will. - But if they have been given under some condition, for example of buying books, paying board, etc., he sins against justice by spending them for other uses.

Whether, and when, a child under paternal power is held to restitution, see n. 907.

863. Things to be noted beforehand. 1. Goods serving in marriage can be ordered in many ways; hence it is necessary to know the diverse regimes of goods, so that the ownership of each spouse may be rightly delimited. - 2. The goods of wives can be either dotal, or paraphernal, or common (III, 489; H. Ap., tr. X, n. 5). This depends either on the will of those about to marry, or on law.

Dotal goods are those that are handed over by the wife, or by parents, or by another to the husband, for sustaining the burdens of marriage, i.e. for providing for the family.

Paraphernal goods (extra-dotal) are those that the wife has besides the dowry, and in which there is no right of the husband, except that which she herself has committed to him. - To paraphernal goods are to be reckoned those which a wife acquires for herself by peculiar skill, by administering the family estate more prudently and attentively, or by subtracting for herself from the goods conceded to her by her husband for food, clothing, and recreation.

Common goods are those that from the pact of the spouses (or from law supplying the place of pact) are brought into society. To these are rightly referred those things that either spouse acquires by ordinary labor and by care of the family estate.

Authors sometimes speak of goods of the family. These are those that have been given for the prosperity of the family or are acquired by common labor, although they cannot always be called common, because the husband can have ownership of them (Noldin, II, 376, c.).

864. Principle. From natural law, either spouse remains owner of his or her own goods, with the obligation of sustaining, according to a proportionate part, the burdens of marriage; but from positive law and from pact, the rights of spouses in goods can be very diverse. Therefore let us see the principal dispositions that the various Codes, or laws, of various peoples contain concerning this matter.

Roman Law. 1. It adjudicates the usufruct and administration of dotal goods to the man, but property to the wife; and therefore, when the man is dead, she is preferred to all his personal creditors for reclaiming the dowry. She can also reclaim the dowry during his life, if it is feared that the man may become unable to restore it. But if the dowry consists in money or consumable goods, or even in stable goods that are handed over to the man valued and with the intention of sale, then the man acquires full ownership, with the obligation of restoring the value when the marriage is dissolved; and therefore, if goods of this kind perish, they perish for the man. - 2. Of paraphernal goods the wife has full ownership and use. - 3. Of common goods (if they are present from a special pact) the property and use pertain to both spouses; but administration to the husband alone (III, 542; H. Ap., l.c.).

865. French Law.⁰¹ It concedes to the betrothed, before marriage, the faculty of making as regards their goods all the pacts that they wish, provided these pacts happen before a public notary, and are not opposed to good morals or laws, or to paternal or marital authority. But if the making of a pact of this kind is omitted, the betrothed are judged to enter a legal community. Now:

I. The Legal Community stands thus: 1. Immovable goods acquired before the nuptials, or afterward coming by donation or succession, remain proper to each spouse. But the proper goods of the wife become quasi-dotal, and the husband alone has their usufruct and administration; yet in such a way that without the wife's consent he cannot alienate them. - 2. Common become both movable goods possessed before marriage, and the fruits of immovables and other revenues, and also immovables acquired in marriage from the goods or by reason of the community. The husband can alienate, pledge, etc., these goods without the wife's consent. Yet concerning immovables, or concerning the totality or a quota of movables, he cannot dispose by gratuitous title. When the community is dissolved, the goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus exempt themselves from the burdens.

II. By the Conjugal Pact can be constituted: 1. The regime of conventional community, by which the legal community is extended or restricted with respect to goods. - 2. A regime excluding community (but without separation), namely by which all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without the faculty of alienating. - 3. The regime of separation, by which all goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, and contributes to the burdens of marriage only a third part of her revenues according to the norm of law, or another sum,

and this determined, whose full ownership is transferred to the husband. - 4. The dotal regime, by which dowry strictly such is constituted, nearly as in Roman Law.

It should be noted: a) There is no regime in which the wife is entirely independent from the husband;⁰¹ namely none in which she can alienate her immovable goods, or present herself in civil court, without the authority of the husband or judge. Nevertheless, even against the will of the husband, she can make a testament. - b) In the prenuptial contract, the betrothed can mutually receive certain donations from themselves or from others, which after the nuptials are prohibited by law.

866. Italian Law.⁰² It has these things proper to itself: 1. Dowry is generally constituted according to the rules of Roman Law (n. 864). This can also embrace future goods of the bride; but after the marriage has been entered, it can no longer be constituted or increased by the spouses. - 2. The betrothed before the nuptials can enter community, not indeed of goods, but of the fruits proceeding from those goods themselves, whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the marriage. In other matters, Italian Law agrees sufficiently with French Law.

Spanish Law.⁰³ Dowry can be constituted, as in Roman Law; likewise paraphernal goods. But a prenuptial pact, which can be instituted, being excluded, the legal community flourishes, as in French Law. When the community is dissolved, first dowry and paraphernal goods must be restored, then common debts paid (Gury-Ferreres, n. 551, where all things are treated at length).

867. Austrian Law.⁰⁴ The goods of wives are subjected to almost the same rules as in Roman Law. - Only these things are to be noted: 1. Community of goods can be stipulated, whether before or after marriage has been entered, but under the conditions and in the form prescribed by law. Regularly, community is judged to have been entered only for the case of death; and therefore, during marriage, the property of common goods belongs to both spouses, the usufruct to the one to whom it belonged before the pact, and administration to the husband alone. When the marriage is dissolved, from the common goods that remain, half pertains to the surviving spouse. - 2. A special pact being excluded, either spouse retains the right of property of his or her own goods, and also the exclusive right to all those things that he or she acquires for himself or herself during the marriage, or that come to him or her. Yet the use and administration of the wife's goods are judged to have been handed over to the husband, as long as she has not contradicted. In doubt, because the wife must help the husband, the profit is presumed to have been made by the husband.

868. German Law. There is a legal or conventional regime (cf. Pruner, n. 609; Pelt, o.c., p. 39).

I. The Legal Regime⁰⁵ imitates the dotal law of Roman Law. Administration and usufruct of dotal goods belong to the husband, who nevertheless, if the wife requests it, is held to explain the state of the things;⁰⁶ nor can the husband alienate or pledge those goods without the consent of the wife. But that they may be placed in safety, there belongs to the wife the right of seeking security or separation of goods. But ownership of paraphernal goods and their free administration are in her possession. As regards debts, see § 1410-1426.

II. The Conventional Regime admits various pacts, which can be entered before or after marriage, and even after marriage be dissolved or changed.⁰⁷ - 1. Universal community can be instituted, by which all goods of the spouses become common, both those possessed before marriage and those acquired afterward; but it must be well noted that in this community of goods either spouse can reserve certain goods to himself or herself, which in the dotal regime and in partial community is granted to the wife alone;⁰⁸ or partial community, by which only a determined part becomes common. This community is twofold: a) community of acquisition, in which both profits made by the spouses and revenues of goods brought in become common goods; but goods, both movable and immovable, possessed by either before marriage remain proper to each. The wife (but not the husband) can reserve paraphernal goods to herself; - b) community of movable goods, which adds to community of acquisition the communion of movables possessed before marriage, and is subject to nearly the same rules as the legal community in French Law.⁰⁹ Administration of common goods belongs to the husband, who nevertheless cannot dispose either of immovables, or of the totality or quota of movables, without the consent of the wife.

2. Separation of goods can also be instituted either from the beginning, or during marriage, in which case the goods of the wife are held as paraphernal.

Under any regime, the wife can, without the consent of the husband, accept or repudiate an inheritance, legacies, and gifts offered to her.

In marriages contracted before January 1, 1900, the condition of goods continues to subsist according to the laws that flourished up to this time.¹⁰

869. English Law. From the year 1870 (August 9), a wife can by full right make her own, without the consent of the man, those goods that she has acquired by separate industry (by separate art or trade), so that both usufruct and administration pertain to her alone. - By the more recent law also (January 1, 1883), a woman who has married remains of full right, like an unmarried woman, concerning possessing, acquiring, and administering her goods. Wherefore, as regards the right of the husband, one must see what goods perhaps were conferred on the husband in the marriage contract.¹¹ - Concerning the inheritance of the husband or wife, see n. 1076-1078.

870. From the things said conclude: 1. Before marriage justice is violated: a) by either spouse, when one deceives the other concerning goods, by amplifying them, or concerning debts, by concealing them; - b) by both, when in the prenuptial pact they express what is false (for example if the bridegroom declares that a dotal good was given to him, which in fact was not given), so that a third party is deceived thereby.

2. After marriage injustice is committed: a) by the wife, if from goods either common or personal to the husband she takes away anything that is necessary neither for her own support nor for the support of her own people (father, mother, or offspring received from a prior marriage); or if in alms and gifts she exceeds the custom that other wives of the same condition observe; if, when the marriage has been dissolved, she renounces the community, or does not make an accurate inventory, in fraud of creditors; - b) by the husband, if he dissipates the dowry of the wife, or her paraphernal goods, or common goods, by juridic acts against the tenor of law, for example by giving by gratuitous title some immovables, or the totality or quota of movables; and in all these cases he is held to restitution.¹²

The question is whether a husband who dissipates common goods unworthily, by living lavishly, yet not against the tenor of civil law, besides the sin against piety that he certainly commits, also sins against justice? It is controverted: authors commonly affirm, in the case in which the wife has handed over all her goods, or the greater part of them, into community; otherwise, if she has handed over only the fruits, as happens from Italian Law (St. Alphonsus, III, 541, 5; Marres, de Just., n. 69).

Things to be noted as regards the wife. The wife is not a maidservant, but a companion, a helper of the man. Therefore it is equitable that there be conceded to her a certain liberty in administering the domestic estate, in making ordinary alms, and this even if the man does not know it, or, from hardness or avarice, is altogether unwilling. Cf. Ami du Cl., 1913, p. 377.

Therefore a wife can, if the man squanders goods to the detriment of the family, hide them and reserve them for the good of the family; or subtract something for the necessary expenses of the family. - She can also, if she does not have paraphernal goods, nor the man wish to give what is necessary, take something from the common goods, provided it is not very notable, for relieving the necessity of parents or children received from a prior marriage (probably, also brothers and sisters). - Finally she can employ means so that, according to her condition, after the man's death necessary things not be lacking to her: understand, if law has not sufficiently foreseen all things (cf. German Law, 2303).

601. • Children of a family are properly called in this place children of either sex born from legitimate marriage, or legitimated, and still subject to paternal power.

It is said: 1° Born from legitimate marriage, or legitimated. For the dominion of illegitimate children, if and insofar as it is not defined by civil law, is governed by natural right.

It is said: 2° Still subject to paternal power, or minors, not emancipated from paternal power. For although the obligations of children existing from natural right, and which exact offices of honor, love, and reverence toward parents, can never be dissolved, nevertheless this does not have place as to those which natural right does not impose forever, such as obedience, or which draw their origin from civil right alone.

602. • In Roman law various goods of children of a family are distinguished;² but since these distinctions are not found in the laws which we use, we set forth here only the dispositions of these. Hence:

603. • Quaer. 1° How many kinds of goods of children of a family are distinguished, and what right belongs to the father in them?

Resp. Among goods which come to a child of a family, some come from his own labor, others from another title, for example from inheritance, legacy, or donation. The father has the usufruct of these if either by law of the State,¹ or by the will of the testator or donor, this is assigned to him; but he has the administration² in every case, unless perhaps goods have been given or bequeathed to the son on this condition, that custody of them be committed to others and not to the father. But if the father has administration alone, the son who uses those goods against the will of the father or without his knowledge will indeed sin against the fourth precept of the Decalogue, but not against justice strictly so called: for in this case nothing of his own thing or of the fruits of the thing perishes for the father; for both the thing and the fruits of the thing, in the supposition, are the son's, not the father's. Yet in this case the son would sin against justice if the father also had the usufruct: for he would deprive the father of the part of the fruits owed to him.

The proper labor by which a son acquires goods is either private or common with the father. It will be private, if for example he carries on trade in his own name; if he exercises an art entirely diverse from the father's art; if he labors in a workshop outside the paternal house; if as a hired man he has hired out his work in his own name. Those things which the son acquires by private labor, with law forbidding this set aside,³ or with the father's consent, whether express or tacit,⁴ supposed,⁵ he acquires for himself, yet with the burden of compensating the father for the expenses of food, clothing, and shelter.

What if the son exercises a common industry with the father?

Resp. Setting aside a contract, for example of partnership, the son lacks right both to a part of the gain procured by his labor, because in this supposition he conducts the father's affairs only as helper or mandatary, and, if at least his labor is already compensated elsewhere by a just wage, to a stipend: for a double wage cannot be asked for the same labor. I say: if his labor is already compensated elsewhere by a just wage, for example by the increase of inheritance through equal labor of the brothers, or by food, clothing, etc., provided to him. Hence, that is, because of defect of compensated labor, he has a right to a stipend; and therefore he can demand it as owed to him by strict right, or, if from reverential fear or from another cause he has not demanded it, he can procure it for himself by hidden compensation, if his labor was certainly not owed. Such would be the case if either from his condition he was not bound to such labor, or by an indubitably extraordinary and undue excess he labored more with the father than the other brothers.¹

604. • Quaer. 2° Does a son have perfect dominion in movable goods given to him by parents or relatives?

Resp. 1° Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, as for example money granted for amusements (pocket money). Make exception if they are given for a determined use, as money for buying clothes or books, etc.

Resp. 2° If they are not consumable by first use, such as books, clothes, etc., the son generally has, that is, outside the case of consent of the parents either express or reasonably presumed, only useful dominion of them, because parents commonly intend to confer nothing else upon them. Wherefore, if the son disposes of these things against the right granted by the parents, a burden of restitution arises.

175. Notions. - Children under family power are called children of either sex, legitimate or legitimated, who are still constituted under parental power. They are:

a) legitimate, namely, those who were born from a marriage contracted according to the laws;¹

¹ According to canon law, which in this matter is specially competent, "legitimate are children conceived or born from a valid or putative marriage, unless to the parents, on account of solemn religious profession or received sacred order, the use of the marriage previously contracted was prohibited at the time of conception," can. 1114.

b) or legitimated, those who were not born from a legitimate marriage, but afterward acquired the rights of legitimate children through a subsequent marriage, and are judged legitimately born (C.C., a. 331-333);

c) those who are constituted under parental power, not that which belongs to parents by force of the natural law for demanding due reverence and obedience (a. 371), but that which by force of civil law is acknowledged to them over the persons and goods of children (a. 372), who are neither emancipated nor of full age.

Hence from parental power there are exempted:

1. natural children not legitimated, especially spurious children, because by law power over them is not conceded to parents,² since no one ought to obtain an advantage from his own delict, just as neither ought the children themselves, except for the right to support, harm the rights of legitimate children;

² It is established for French law from a. 384, which supposes marriage.

2. those of full age: in modern law the determined age of majority is generally the completed 21st year;³

³ Thus also in canon law, c. 88, § 1. - In Switzerland, however, it is the 20th year.

3. those previously emancipated, either by the law itself, for example, through marriage, or by a special juridical act. Emancipation through marriage is not acknowledged by German, Austrian, or Italian law; it is acknowledged by French and Belgian law (a. 476), Spanish, Dutch, English, and Swiss law; - emancipation by juridical act can be granted to a son after the completed 18th year according to German, Swiss, Italian, and Spanish law; also according to Dutch law, but imperfectly, and perfectly after the 20th year; by French and Belgian law by the father, and if he is lacking by the mother, before a judge after the completed 15th year (a. 477), and if they are deceased only after the completed 18th year by deliberation of the family council under the presidency of the judge (a. 478).

176. Principles. - Children under family power are capable of dominion, and, after the use of reason, also of its exercise. But they are judged not mature enough to manage their own things well and prudently, and certain burdens toward parents are incumbent upon them. Whence in them the right of dominion is deservedly restricted by various limits to be determined by law. Hence three principles:

I. Children under family power have direct dominion in goods which justly come to them.

II. They do not have the administration of goods, which is in the power of the father or tutor until the children's majority or emancipation.

III. Useful dominion or usufruct of itself belongs to the parents, by way of compensation for the support and education of the children, or also for the administration of goods;⁴ yet it belongs to the children a) for goods which come to them under the condition that the usufruct not come to the parents; b) for those goods which they have acquired by labor undertaken in their own name or by separate industry, unless otherwise established in civil law for compensation of education, as in Spanish law (a. 140) and American law, but for minors alone who remain at home. But French and Belgian law (a. 387), Italian (a. 229), Dutch (a. 366), German (a. 1649-1651), Austrian (a. 149), and Swiss (a. 296) leave the fruits of labor exercised in one's own name or of separate industry to the children.

⁴ The Austrian Code adjudges usufruct away from parents and concedes only administration (a. 149). Usufruct belongs to the children, after the expenses of education have nevertheless been deducted.

In particular, by French and Belgian law, minor children do not have usufruct before the 18th year of age, or before they are emancipated (a. 384),⁵ unless there is question of goods acquired by separate labor or industry (a. 387); - or donated under the express condition that neither father nor mother enjoy them⁶ (ibid.); - or coming from a succession for which the parents have been declared unworthy (a. 730).

⁵ The reason why this article was established is that parents, where possible, may in some way be made indemnified for the expenses which the education of children demands. But the law did not will these expenses to be mathematically computed in order to make compensation; rather it attributed to parents usufruct in the goods of children, lest they be held by the children as hired mandataries, from whom an account could have been demanded to the detriment of filial piety.

⁶ In Italian law, moreover, those things which were given to the son for learning an art or profession (a. 228-229); in Spanish law, those things which were given for education (a. 160-162).

Outside these cases, usufruct belongs to the father alone (a. 384 and 389) as if compensation for the labor of administration; it does not belong to the mother, if the father renounces, but only when she takes the place of an impeded father. When the marriage is dissolved, it belongs to the surviving spouse (a. 384); but if the mother enters a new marriage, she loses the usufruct,⁷ because a new family is constituted, the woman passing under the power of another (a. 386). The spouse against whom divorce has been pronounced is also excluded (ibid.); likewise the spouse who has neglected to make an inventory of the goods of the community (a. 1442). But the administration of all goods is in the power of the father or tutor (a. 389 sq.), until the children become of full age, who have administration in every respect⁸ (a. 488); or emancipated, who have restricted administration (a. 481-484), but full administration in matters of commerce (a. 487).

⁷ Italian law so establishes concerning either spouse who, after the death of the consort, passes to new nuptials.

⁸ According to the German Code (a. 1618), those of full age are of their own right; nevertheless, if they remain in the paternal home, until they demand compensation of fruits from their own proper goods, they are presumed to concede them to the parents.

177. Question: Whether children under family power have full dominion over gains which come from their own labor?

R. The separate and non-separate industry of the child is distinguished; and when there is question of non-separate industry, it is distinguished whether the child acts as a partner of the father (for example, if he conducts commerce together with the father), or as his mandatary (for example, as a servant or minister). Industry is called non-separate when the child labors and gains, whether in the paternal home from the father's things and about the father's things, or outside the paternal home among strangers but nevertheless in the father's name. Industry is called separate or proper when the child labors and gains either among strangers in his own name, or in the paternal home itself but not about the father's things nor from the father's things.

These things being noted:

1st. If the child makes gains by separate labor and industry, he has dominion and usufruct of that gain (C.C., a. 387); yet administration during the time of minority remains with the father; wherefore if the child, against the parents' will, retains and dissipates these goods, he sins against other virtues, not against justice. Moreover:

a) the child from justice must compensate the expenses of food and clothing: for parents are not bound to support a child who can provide for himself from his own gains;

b) from piety he must assist the grave necessity of his parents and family, namely, brothers and sisters.

Hence it happens that younger workers (to whom a high wage is not accustomed to come), even when laboring outside the paternal home and by separate industry, often must hand over the whole wage to the parents and cannot reserve a part for themselves except in extraordinary cases, for example, by reason of extraordinary labor or diligence, or if the parents freely consent, which nevertheless is not easily to be supposed among poor parents.⁹

⁹ In two cases children would not be accused of sin because they subtracted something of the salary received from the parents and from the father's administration: a) if the parents do not reserve for the children those things which exceed support, but spend them on superfluous uses; b) if the parents, being too sparing, deny the children those things which are suitable for honorable recreations. Yet, as is clear, these are not easily to be admitted.

2nd. If the child makes gains as a partner of the father, with the father's consent obtained and a true contract of partnership entered, he has full right to the part of the gains coming from the partnership. Therefore one must stand by that contract, provided it was entered justly, without injury to a third party, for example, other children. Such an agreement is generally not to be advised; at times, however, it is rightly concluded, for example, if the other children conduct their own affairs and one remains at home. But civil law (C.C., a. 854) deservedly requires that the partnership have been entered by an authentic act, lest frauds be committed and one child vindicate to himself from the goods of the family more than is equitable.

3rd. If the child, as happens more often and deservedly, acts as mandatary of the father, laboring in his name and at his risk, for example, if the father has hired out the labor of the child, the whole gain belongs to the father. There is excepted only gain from work wholly extraordinary and not owed, or from a business which the child establishes in his own name and at his own risk, whether with his own goods, or with paternal goods conceded to him or secretly taken. For although the child sins by taking the father's money, nevertheless he acquires the gain, provided he also assumes the risk of the principal and repairs to the father the damage arising from the surreptitious taking.

In this case it is further asked whether that child has a right to a stipend, or salary proportioned to his labor. R. Theoretically speaking, he probably has a right to so much stipend as would be owed to a stranger, after deducting those things which are owed to the father from justice and piety; although others deny this, because a father can always use the labor of minor children, at least by way of compensation for the education given, and impose it under the title of the debt of piety and obedience. Practically speaking, that right generally seems to be denied, because parents, who have made such great expenses for minors, can demand, as compensation for expenses made, that they labor for preserving and increasing the family estate, and be content with support received at home; moreover, the father, as superior, commanding is to be obeyed, until it is certain that he commands unjustly and exceeds the limits of his power. Especially, however, the child cannot urge anything:

a) if he has not explicitly asked for a stipend, or, on account of reverence for his father, at least implicitly: for then he is judged to labor gratuitously, as generally happens;

b) if all the children, either simultaneously or successively, labor in this way equally or almost equally; otherwise one would receive more than is equitable from the common inheritance;

c) if the father by himself or through others would have done the same without expense: for then the gain does not depend upon the labor of that child.

178. Practical conclusions. - From the principles established above the following conclusions follow:

1st. A child has dominion over goods conceded to him by his parents according to the explicit or implicit intention of the parents; namely:

a) over goods which were given absolutely, he has full dominion;

b) but not over goods given for a determinate use: thus, for example, he would act unjustly who spent money received for buying books or completing studies on another use, say, on immoderate recreations or pleasures;

c) if the express intention was not present, it can be discerned from the nature of the thing or the circumstances: thus consumable things are judged to be given absolutely, unless the contrary is established, namely, that they are given for a special end; on the contrary, non-consumable things (clothes, books, horse) are judged to be given only for use. Likewise, with children living outside the home for the sake of study or art or commerce, parents are to be presumed to indulge those things which are accustomed to be attributed to young persons of the same condition.

2nd. A child, with the father's consent, living outside the paternal home and laboring in his own name, is judged also to have disposition over those things which he acquires; this is not only conformed to French law (a. 387) and kindred legal systems, but is also explicitly stated by English, American, Austrian (a. 151), Spanish (a. 159), and Swiss law (a. 295).

3rd. The following sin against commutative justice and of themselves are bound to restitution:

a) parents, by taking the goods of the child, or by taking usufruct if according to civil law they would not have right to it, but the child would;

b) the minor child, by taking the goods of the parents, or by taking usufruct of his own goods to which he does not have right according to the prescriptions of the civil law of diverse nations.

179. Practical observations. - 1. Before the faithful, especially in preaching, the rights of children from the rigor of right are not to be explained minutely; nor generally are those agreements concerning dividing gain between parents and younger workers to be advised, by which it comes about that children become as it were boarders with their parents. Rather, by all means let mutual piety, paternal authority, and the unity of families be inculcated.

2. Yet let parents be admonished at an opportune time that they provide equally for their children, especially for those remaining at home, and also not deny them some money for honorable recreations.

3. If a confessor finds children very prone to occult compensation, then let him judge and act prudently: before the fact, let him rather set forth the stricter opinions and especially inculcate paternal authority; after the fact, let him incline toward the milder opinion for restitution and examine the causes which often excuse from it, nor impose it unless the obligation of making restitution is certain.

4. The things which have been said about a child under family power toward father and mother as to gains which he makes in the father's house are to be extended to a grandson, a granddaughter, and to any other blood relative who is found in a similar condition.